October 25, 2012

Judge dismisses suit against Commission for Lawyer Discipline

Judge Patricia Kerrigan of the 190th District in Houston signed an order Monday dismissing a suit filed by a Galveston County prosecutor who alleged the Commission for Lawyer Discipline (CLD) violated his rights by relying on “illegally gathered and illegally possessed evidence” in a grievance proceeding against him.

In the petition filed Oct. 11, Vikram Vij, an assistant district attorney in Galveston County, alleged the grievance proceeding is based on a partial transcript from a court hearing in a criminal case, and the record in that case has been expunged, putting him at a “distinct disadvantage” in mounting a defense. Vij sought a declaratory judgment that the CLD’s actions violated his Texas constitutional rights; he sought temporary and permanent court orders barring the CLD from using or obtaining any records subject to expunction in the criminal case and from using them in the grievance proceeding against him.

In her order, Kerrigan found that the CLD’s plea to the jurisdiction is meritorious.

“[T]he Court finds that ordering the Grievance Committee to not use evidence in its proceedings which was anonymously submitted to it and which is part of the record ordered expunged by the trial court would constitute an interference in the process of the State Bar grievance process,” Kerrigan wrote.

Kerrigan wrote that Vij and Jon Hall, a former assistant DA in Galveston County who intervened in the suit, assert that their due process rights have been violated, but “they have not presented to the Court a constitutional challenge to the rules and procedures governing the grievance process.” She writes that they also have not presented their arguments that their due process rights have been violated to the grievance committee.

On Oct. 18, Hall intervened in Vij v. Commission for Lawyer Discipline, alleging in his original petition in intervention that he is similarly situated to Vij because “both are the subject of independent, but interrelated disciplinary actions” initiated by the commission, and that he is entitled to the same injunctive relief.

Ron Rainey, a partner in Tritico Rainey in Houston and an attorney for Vij, did not immediately return a telephone message.

Hall’s attorney, Jennifer Hasley, a partner in Hasley Scarano of Houston, says she will raise the issues presented in the petition to the evidentiary panel hearing the disciplinary action against Hall.

“We hope that we will get a fair hearing and an opportunity to present the same issues and get this issue resolved, but we anticipate the State Bar will fight us every step of the way,” Hasley says.

When asked for a response to Kerrigan’s order, Kim Bueno, public affairs administrator for Chief Disciplinary Counsel for the Commission for Lawyer Discipline Linda Acevedo, provided this written statement:

“The dismissal of Mr. Vij’s lawsuit against the Commission allows the disciplinary proceeding against him to continue in the proper forum. Although Mr. Vij made the matter public by the filing of his suit, we decline any further comment on the proceeding at this time.”